Judge: Ronald F. Frank, Case: 22TRCV01490, Date: 2023-12-14 Tentative Ruling
Case Number: 22TRCV01490 Hearing Date: December 14, 2023 Dept: 8
Tentative Ruling¿
¿¿
HEARING DATE: December 14, 2023¿¿
¿¿
CASE NUMBER: 22TRCV01490
¿¿
CASE NAME: Mohammad
Gholikhani v. Darat Zappas, et al.
¿¿
MOVING PARTY: Defendant, Darat Zappas, as successor trustee of the
William R. Zappas Trust UDT May 14, 1990
¿¿
RESPONDING PARTY: Plaintiff,
Mohammad Gholikhani
¿¿
TRIAL DATE: Not Set.
¿¿
MOTION:¿ (1) Demurrer¿
(2)
Motion to Strike
¿
Tentative Rulings: (1) Defendants’ Demurrer is SUSTAINED
in part and OVERRULED in part. 20 days’ leave
to amend is granted
(2)
Defendants’ Motion to Strike is GRANTED, with leave to amend
¿¿
¿
I. BACKGROUND¿¿
¿¿
A. Factual¿¿
On December 14, 2022,
Plaintiff, Mohammad Gholikhani (“Plaintiff”) filed a Complaint against
Defendants, Tally Ho Apartments, William R. Zappas, as an individual and as
trustee of the William R. Zappas Trust. On August 2, 2023, Plaintiff filed a
First Amended Complaint (“FAC”) alleging causes of action for: (1) Negligence;
(2) Breach of Contract; (3) Breach of Implied Warranty of Habitability; (4)
Breach of Implied Warranty of Quiet Enjoyment; (5) Private Nuisance; (6)
Intentional Infliction of Emotional Distress; (7) Negligent Misrepresentation;
(8) Fraud; (9) Violation of Penal Code § 496(A); (10) Violation of California
Civil Code § 1942.4; (11) Violation of California Civil Code § 52.1; and (12)
Unfair Business Practices – Restitution.
Defendant, Darat Zappas,
as Successor Trustee of the William R. Zappas Trust UDT May 14, 1990 (“Zappas”)
now files a demurrer and motion to strike portions of the FAC.
B. Procedural¿¿
¿
On
October 3, 2023, Zappas filed a Demurrer and Motion to Strike. On October 18,
2023, Plaintiff filed oppositions to both motions. On December 11, 2023, Zappas
filed reply briefs to both oppositions.
II. GROUNDS FO MOTIONS
Defendant
Zappas demurs to Plaintiff’s fifth, sixth, eighth, ninth, tenth, and eleventh
causes of action on the grounds that Zappas argues the causes of action fails
to state facts sufficient to state causes of action.
Defendant
Zappas also filed a Motion to Strike all references to punitive damages in
Plaintiff’s FAC.
III. ANALYSIS¿
¿
A.
Demurrer
A demurrer can be used only
to challenge defects that appear on the face of the pleading under attack or
from matters outside the pleading that are judicially noticeable. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint
need only allege facts sufficient to state a cause of action; each evidentiary
fact that might eventually form part of the plaintiff’s proof need not be
alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of
action, the demurrer admits the truth of all material facts properly pleaded. (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does
not admit contentions, deductions or conclusions of fact or law.” (Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿
¿¿
A pleading is uncertain if
it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for
uncertainty may lie if the failure to label the parties and claims renders the
complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed,
even where a complaint is in some respects uncertain, because ambiguities can
be clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿
Private Nuisance
Defendant Zappas argues that Plaintiff has
failed to state sufficient causes of action for Private Nuisance. To establish
an action for private nuisance, (1) “the plaintiff must prove an interference
with his use and enjoyment of his property”; (2) “the invasion of the
plaintiff’s interest in the use and enjoyment of the land must be substantial,
that is, that it causes the plaintiff to suffer substantial actual damage”; (3)
“the interference with the protected interest must not only be substantial, but
it must also be unreasonable, i.e., it must be of such a nature, duration, or
amount as to constitute unreasonable interference with the use and enjoyment of
the land.” (Mendez v. Rancho Valencia
Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263, citations, italics,
brackets, and quotation marks omitted.)
Specifically, Defendant Zappas argues that
Plaintiff has asserted both a nuisance cause of action and a negligence cause
of action, both of which rely on the same facts about an alleged lack of due
care. Zappas argues that pursuant to El Escorial Owners' Assn. v. DLC
Plastering, Inc. (2007) 154 Cal.App.4th 1337, there can be no separate
claim for nuisance when the claim relies on the same facts of lack of due care
to support a negligence claim.
In El Escorial, the Court of Appeal
held that “[w]here negligence and nuisance causes of action rely on the same
facts about lack of due care, the nuisance claim is a negligence claim.”)
In Van Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367, 372 (Van Zyl),
the Court of Appeal recognized that where a plaintiff seeks to recover under
the same set of facts but under different theories of recovery—i.e., private
nuisance and negligence—there is but one cause of action. Nevertheless, neither
El Escorial nor Van Zyl arose on demurrer, and the Opposition
correctly notes that El Escoral is distinguishable from the instant allegations
because there are independent facts alleged in the nuisance and negligence
causes of action and different elements the Plaintiff will be required to prove
to establish those separate causes of action.
This Court also notes that in Melton v. Boustred (2010) 183 Cal.App.4th 521, 543 (Melton), also cited to
by Defendant Zappas, the Court of Appeal sustained a demurrer to a public
nuisance cause of action, finding that it was a restatement of a negligence
claim to which the court had already sustained demurrer. (Melton, supra,
183 Cal.App.4th at pp. 542-543.) However, Melton does not stand
for the proposition that the court should separately sustain a demurrer to a
nuisance claim if it is based on the same facts as a negligence claim.
In this case, the
allegations made pursuant to the private nuisance cause of action are much more
substantial than the ones made for the negligence cause of action. Further,
this Court notes that Plaintiff has alleged each element required to state a
cause of action for private nuisance including: (1) the interference with his
use and enjoyment of the premises (FAC, ¶ 75); (2) the invasion of his interest
in the use and enjoyment of the subject property being substantial (FAC, ¶ 77);
and (3) that the interference was unreasonable as to constitute unreasonable
interference the use and enjoyment of the subject property (FAC, ¶ 78.) The Court
finds that Plaintiff has successfully stated a cause of action for private
nuisance that is independent of the cause of action for negligence, so this
Court OVERRULES demurrer as to the fifth cause of action.
Intentional Infliction of Emotional Distress
Defendant
Zappas also contends that Plaintiff fails to state sufficient facts to state a
cause of action for IIED. “The elements of a prima facie case for the tort of
intentional infliction of emotional distress are: (1) extreme and outrageous
conduct by the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous conduct.
Conduct to be outrageous must be so extreme as to exceed all bounds of that
usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and
ellipses omitted.)
Defendant
Zappas argues that Plaintiff has not alleged any facts that together allege
that Defendant engaged in extreme and outrageous conduct with the intention of
causing, or reckless disregard of the probability of causing, sever and
emotional distress. Plaintiff’s FAC alleges that the “acts and omissions taken
by Defendants, directly and through their agents, in renting an illegal unit
and refusing to make repairs, were intentionally done to cause harm to
Plaintiff as Defendants knew that Plaintiff was suffering severe emotional
distress and took no steps to change their actions. (FAC, ¶ 88.) Some of the
notes Plaintiff made in the FAC include: (1) Lack of heating; (2) Lack of
ventilation; (3) Defective plumbing; (4)
Lack of property and legal kitchen; (5) Lack of separate meters; (6) Vehicular
emissions unit; (7) Lack of proper security measures; (8) Maintenance issues;
(9) Nuisance issues; (10) Pest/Rodent Infestations; (11) Mold and mildew; (12)
Unsanitary and unsafe common areas; (13) Illegal construction without permit;
(14) Dust and debris; and (15) Stairs. (FAC, ¶ 51.)
Plaintiff’s
FAC further indicates that Defendant failed to timely remedy ongoing breaches
of warranty of habitability and did not allow Plaintiff to quietly enjoy the
Apartment. (FAC, ¶ 89.) Plaintiff notes that Defendants’ conduct was knowing
and willful, and that they had full knowledge or substantial certainty of the
severe mental distress and physical hardship that their conduct would cause
Plaintiff. (FAC, ¶ 91.) Lastly, Plaintiff contends that Defendants’ conduct
would cause any reasonable person emotional distress. (FAC, ¶ 92.)
Despite
this, the Court finds that there are numerous Defendants, tied together by
holding undivided interests in Tally Ho Apartments. However, Plaintiff’s FAC
alleged his IIED claim against “Defendants” generally and does not necessarily
indicate extreme and/or outrageous conduct on behalf the demurring defendant
Zappas here. Particularly since Zappas is a successor trustee, as to whom there
is no allegation as to when he became successor or otherwise participated in
the alleged wrongdoing, it is not clear when his involvement began and which of
the alleged acts are ones for which he, as distinct from other defendants, might
be responsible for. The Court requires
more in the way of detail as to the acts of specific defendants when punitive damages
are being sought, as opposed to vague allegations as to all defendants, particularly
when constructive notice rather than purely actual is being alleged as to particular
conditions of the rental premises. As
such, the IIED claim against Defendant Zappas is SUSTAINED with twenty (20)
days leave to amend.
Fraud
Defendant Zappas also argues that Plaintiff’s FAC fails to
state a claim for fraud. “The elements of fraud are (a) a misrepresentation
(false representation, concealment, or nondisclosure); (b) scienter or
knowledge of its falsity; (c) intent to induce reliance; (d) justifiable
reliance; and (e) resulting damage.” (Hinesley
v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts
constituting the alleged fraud must be alleged factually and specifically as to
every element of fraud, as the policy of “liberal construction” of the
pleadings will not ordinarily be invoked. (Lazar
v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud
against a corporation, the plaintiffs must plead the names of the persons
allegedly making the false representations, their authority to speak, to whom
they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co.
(1991) 2 Cal.App.4th 153, 157.)
More
specifically, Defendant Zappas argues that Plaintiff has failed to plead his
fraud allegations with the factual specificity required to support a cause of
action for fraud. Here, although not definitively distinguished, it appears
that Plaintiff may be bringing a fraud cause of action for misrepresentation.
(FAC, ¶ 107.) This is important as unlike in a fraudulent concealment cause of
action, a cause of action for negligent or intentional misrepresentation
requires details of the: identity of individuals who purportedly concealed
material facts or made untrue representations; (2) their authority to speak and
act on behalf of Defendant Zappas; (3) Defendant Zappas’s knowledge about
alleged unhabitable conditions of the apartment; (4) any interactions with
Defendant Zappas before or during the signing of the lease; or (5) Defendant
Zappas’s intent to induce reliance by Plaintiff to sign the lease.
In the
instant case, Plaintiff’s FAC does not allege this level of detail. Instead,
Plaintiff merely makes his allegations against “Defendants” generally.
Plaintiff does not indicate who he spoke with before or during the signing of
the lease; what questions he asked regarding the lease of the apartment; what
representations were made about the leased apartment, etc.. Without more,
Plaintiff will not be able to maintain a cause of action for fraud against
Defendant Zappas. As such, the fraud claim against Defendant Zappas is
SUSTAINED with twenty (20) days leave to amend.
Violation of Penal Code § 496(a)
Defendant
Zappas further argues Plaintiff cannot maintain a cause of action for Violation
of Penal Code § 496(a). Penal Code § 496(a) states: “Every person who
buys or receives any property that has been stolen or that has been obtained in
any manner constituting theft or extortion, knowing the property to be so
stolen or obtained, or who conceals, sells, withholds, or aids in concealing,
selling, or withholding any property from the owner, knowing the property to be
so stolen or obtained, shall be punished by imprisonment in a county jail for
not more than one year, or imprisonment pursuant to subdivision (h) of Section
1170. However, if the value of the property does not exceed nine hundred fifty
dollars ($950), the offense shall be a misdemeanor, punishable only by
imprisonment in a county jail not exceeding one year, if such person has no
prior convictions for an offense specified in clause (iv) of subparagraph (C)
of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring
registration pursuant to subdivision (c) of Section 290.”
“While [Penal Code §496(a)] covers
a spectrum of impermissible activity relating to stolen property, the elements
required to show a violation of section 496(a) are simply that (i) property was
stolen or obtained in a manner constituting theft, (ii) the defendant knew the
property was so stolen or obtained, and (iii) the defendant received or had
possession of the stolen property.”¿ (Switzer v. Wood (2019) 35
Cal.App.5th 116, 126, as modified (May 10, 2019), quoting Lacagnina
v. Comprehend Systems, Inc. (2018) 25 Cal.App.5th 955, 970 [elements of
Penal Code §496 offense stated].)¿ “A violation of section 496(a) may, by
its own terms, relate to property that has been ‘stolen’ or ‘that has been
obtained in any manner constituting theft or extortion.’”¿ (Id., quoting
Pen. Code §496(a).)¿
Defendant
Zappas argues that because Plaintiff has failed to state his fraud cause of
action with particularity, he also has failed to state this cause of action
with particularity and specificity as well. The FAC states that with full
knowledge that the Apartment was an illegal unit, Defendants knowingly and
designedly, by false and fraudulent representation and pretenses intended to,
and did in fact, defraud Plaintiff of his property, and fraudulently induced
Plaintiff into entering into a rental lease with Defendants for an illegal
unit. (FAC, ¶ 118.) Thus, Plaintiff alleges that Defendants are responsible for
misappropriating Plaintiff’s monies for rent for an illegal unit which
Defendants were ineligible to collect rent payments for. (FAC, ¶ 119.)
Here, the
Court agrees that Plaintiff’s FAC lacks the specificity and particularity
required by causes of action which rely on fraud. Beyond that, the Court does
not believe Plaintiff has alleged the causes of action required for a Violation
of Penal Code § 496(a) as Plaintiff’s FAC does not allege how taking money for
an illegal unit constitutes that property is stolen or obtain in a manner
constituting theft. The Court will allow oral argument on how Plaintiff intends
to amend this cause of action; however, the Court’s tentative ruling is to
SUSTAIN the cause of action with twenty (20) days leave to amend.
Violation of Civil Code § 1942.4
Next,
Defendant Zappas contends Plaintiff is unable to allege sufficient facts to
maintain a cause of action for violation of civil code § 1942.4. Civil Code §
1942.4 bars a landlord from collecting rent, increasing a tenant’s rent, or
issuing a 3-day notice to pay rent or quit if the premises contains conditions
that endanger the health and safety and a public officer has notified the
landlord of his or her obligation to abate or repair the substandard conditions,
and that the conditions have existed and have not been abated thirty-five (35)
days beyond the date of service of the notice and the delay is without good
cause.
Here,
although Plaintiff includes facts that indicate that he is alleging the
premises contains conditions that endanger his health and safety, he has not
alleged that a public officer or employee who is responsible for the
enforcement of any housing law, after inspecting the premises, has notified the
landlord’s agent in writing of his or her obligations to abate the nuisance or
repair the substandard conditions, or that the conditions have existed thirty
five days beyond date of service. As such, the demurrer as to this cause of
action is SUSTAINED with twenty (20) days leave to amend.
Violation of Civil Code § 52.1
Lastly, Defendant Zappas argues
Plaintiff has failed to allege facts sufficient to state a cause of action for
violation of Civil Code § 52.1. The Tom Bane Civil Rights Act is codified at
Civil Code section 52.1. It provides that an individual may bring a private
right of action for damages, injunction, and equitable relief against a person
if that person “interferes by threats, intimidation, or coercion, or attempts
to interfere by threats, intimidation, or coercion, with the exercise or
enjoyment by any individual or individuals of rights secured by the
Constitution or laws of the United States, or of the rights secured by the
Constitution or laws of this state.” (Civ. Code, § 52.1, subd. (a), (b),
(h).)
“The essence of a¿Bane¿Act¿claim is that the
defendant, by the specified improper means (i.e., ‘threats, intimidation or
coercion’), tried to or did prevent the plaintiff from doing something he or
she had the right to do under the law or to force the plaintiff to do something
that he or she was not¿required to do under the law. [Citation.]” (Austin B.
v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.) Put
simply, “[a] defendant is liable if he or she interfered with or attempted to
interfere with the plaintiff's constitutional rights by the requisite threats,
intimidation, or coercion.” (Shoyoye v. County of Los Angeles (2012) 203
Cal.App.4th 947, 956.)
A
Bane Act claim does not appear appropriate under the facts alleged in the FAC.
First, this Court notes that it is unclear which constitutional right Defendant
Zappas interfered with when it allegedly interfered or attempted to interfere
with Plaintiff’s exercise and enjoyment of his statutory and common law
rights. To the extent that the cause of
action is based on interference with Plaintiff’s purported right to exercise
and enjoy his apartment, Plaintiff merely alleges in a conclusory manner that
he suffered from threats, intimidation, or coercion. Second, the Court believes
that the allegations in this cause of action will need to be pleaded with more
particularity as well. What were Plaintiff’s rights that were infringed? Who
was threatening, intimidating, or coercing him? Did this Demurring defendant as opposed to other
defendants engage in the allegedly infringing misconduct? It is uncertain based on the FAC. As such,
the demurrer to this cause of action is SUSTAINED with twenty (20) days leave
to amend.
B. Motion
to Strike
¿
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading.¿ (Code Civ. Proc., § 436(a).)¿ The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the
court.¿ (Id., § 436(b).)¿ The grounds for a motion to strike are that
the pleading has irrelevant, false improper matter, or has not been drawn or
filed in conformity with laws.¿ (Id., § 436.)¿ The grounds for moving to
strike must appear on the face of the pleading or by way of judicial notice.¿ (Id.,
§ 437.)¿ “When the defect which justifies striking a complaint is capable of
cure, the court should allow leave to amend.”¿ (Vaccaro v. Kaiman (1998)
63 Cal.App.4th 761, 768.)
Civil Code section 3294, subdivision (a) authorizes
punitive damages in non-contract cases “where the defendant has been guilty of
oppression, fraud, or malice.”
“Malice [is defined as] conduct which is intended by
the defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard for the
rights and safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression”
means “despicable conduct that subjects a person to cruel and unjust hardship
in conscious disregard of that person's rights.” (Civ. Code, § 3294, subd.
(c)(2).) “Fraud” is “an intentional misrepresentation, deceit, or concealment
of a material fact known to the defendant with the intention on the part of the
defendant of thereby depriving a person of property or legal rights or
otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)
“In order to survive a motion to strike an allegation of
punitive damages, the ultimate facts showing an entitlement to such relief must
be pled by a plaintiff. In passing on the correctness of a ruling on a motion
to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. In ruling
on a motion to strike, courts do not read allegations in isolation.” (Clauson
v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation
an intentional tort was committed is not sufficient to warrant an award of
punitive damages. Not only must there be circumstances of oppression, fraud or
malice, but facts must be alleged in the pleading to support such a claim.” (Grieves
v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Something more than the
mere commission of a tort is always required for punitive damages. There must
be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a
fraudulent or evil motive on the part of the defendant, or such a conscious and
deliberate disregard of the interests of others that his conduct may be called
willful or wanton.” (Taylor v. Superior Court (1979) 24 Cal.3d 890,
894.)
To plead a “willful and conscious disregard of the rights
of others,” a plaintiff need only allege, “that the defendant was aware of the
probable dangerous consequences of his conduct, and that he willfully and
deliberately failed to avoid those consequences.” (Lackner v. North
(2006) 135 Cal.App.4th 1188, 1211.) However, the definition of malice also
requires that the conduct be despicable. “'Despicable conduct' has been
described as conduct which is so vile, base, contemptible, miserable, wretched
or loathsome that it would be looked down upon and despised by ordinary decent
people. Such conduct has been described as '[having] the character of outrage
frequently associated with crime.”' (American Airlines, Inc. v. Sheppard,
Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) In cases
involving conduct performed without intent to harm, a finding of malice
requires proof by clear and convincing evidence that defendant's tortious wrong
amounted to despicable conduct and that such despicable conduct was carried on
with a ‘willful and conscious disregard’ of the rights or safety of others.”
(See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704,
725.)
“A breach of a fiduciary duty alone without malice, fraud
or oppression does not permit an award of punitive damages. The wrongdoer must
act with the intent to vex, injure, or annoy, or with a conscious disregard of
the plaintiff's rights. Punitive damages are appropriate if the defendant's
acts are reprehensible, fraudulent or in blatant violation of law or policy.
The mere carelessness or ignorance of the defendant does not justify the
imposition of punitive damages. Punitive damages are proper only when the
tortious conduct rises to levels of extreme indifference to the plaintiff's
rights, a level which decent citizens should not have to tolerate.” (Tomaselli
v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)
Here, Defendant Zappas bases its Motion to Strike
Plaintiff’s prayer for Punitive Damages on the argument that Plaintiff has not
pleaded any of its causes of action relating to punitive damages with the
requisite facts. This Court notes, that
although it has sustained a majority of the demurrer as to almost each cause of
action, the Court overruled the demurrer as to the cause of action for private
nuisance. However, the gravamen of the private
nuisance cause of action is negligent misconduct, not malicious misconduct,
except as alleged in paragraphs 84-85.
However, those allegations are generally as to “Defendants,” without specificity
as to this specific demurring defendant Zappas.
The Court GRANTS the motion to
strike, with 20 days leave to amend.